PREMIUM ROOMS

High Court To Consider Rules On Use Of Scientific Evidence
By Natalie Angier
The New York Times, January 2, 1993

Jason Daubert, of San Diego, was born 19 years ago with only two fingers on
his right hand and without a lower bone on his right arm. Eric Schuller, 12,
also of San Diego, was born without a left hand and with one leg shorter
than the other.

As birth defects go, limb deformities like theirs are relatively common,
afflicting about 1 in 2,000 American infants born each year. Yet these two
boys' stories could help shape thousands of legal decisions now mired in a
debate over what sort of scientific evidence should be admissible before a
jury and what sort of credentials a scientist or other expert must possess
to take the witness stand.

While pregnant, the mothers of each boy took Bendectin, a drug for morning
sickness that was driven off the market almost a decade ago by the pressure
of lawsuits asserting that the medication caused birth defects. Before its
maker, Merrell Dow Pharmaceuticals Inc., dropped Bendectin, about 33 million
women had used it, and scientific studies overwhelmingly concluded that it
was safe. All but a handful of suits against the drug have been thrown out
of court, including those brought in California by lawyers for the Daubert
and Schuller families.

Now the United States Supreme Court has taken up the California case,
Daubert v. Merrell Dow Pharmaceuticals, not to consider whether Bendectin
causes birth defects but to tackle an issue with vast legal and ethical
implications.

The debate distills down to these questions: Who should decide when a
scientific claim is legitimate enough to put before a jury in a civil or
criminal case? Should a judge be able to exclude scientific testimony that
the judge deems unorthodox, say, because the theory has not been published
in a scientific journal? Or should any expert who holds so much as a
master's degree in a specialty be able to testify on a theory that
mainstream scientists would dismiss as wild speculation?

The deadline for briefs is Jan. 19, and and the Court is expected to decide
the case by the summer.

The outcome could affect many tort cases that attribute cancer to industrial
chemicals, autoimmune diseases to breast implants, mental illness to mercury
dental fillings, and the like. The ruling could also influence when and
under what circumstances experimental forensic techniques like DNA
fingerprinting could be used in court.

Regardless of the outcome, the case throws into sharp relief the argument
over the quality of science heard in the courtroom, the role of the legal
system in insuring consumers' health and safety, and whether the United
States is losing its technological and competitive edge in part because
industries are cowed by the threat of litigation.

A View of Juries As Gullible

Those who favor tight restrictions on the admissibility of scientific
evidence -- many of them lawyers who represent industry in product-liability
cases -- argue that the courts are drowning in unproved theories and
unsubstantiated conclusions that gain undeserved validity by being presented
in sworn testimony. They say juries are too often bedazzled by so-called
expert witnesses and are not trained to discriminate between sound and
crackpot science.

But those who support wide admissibility of evidence said much of the
information relevant to cases involving accusations of harmful products and
medications and the like is on the cutting edge of science and not yet a
part of the mainstream. For example, they said that it may take decades to
prove unequivocally that a chemical causes cancer, but that in the meantime
enough suggestive clues may arise to warrant a liability lawsuit. They argue
that juries are smarter and more discriminating than they are given credit
for, and that they are perfectly able to tell when a scientific witness is a
charlatan.

In the Daubert case, lawyers for the plaintiff will argue that the Federal
judge in California who dismissed the suit should not have been allowed to
exclude scientific testimony that relied on an unconventional method of
interpreting medical data, an approach that concluded that Bendectin did, in
fact, cause birth defects.

In legal terms, the case pits the so-called Frye Rule, which was invoked in
the Daubert case, against the Federal Rules of Evidence. In the landmark
1923 Frye rule, a Federal appellate court judge refused to allow results
from an early lie detector test to be used against a criminal defendant. He
said that any expert testimony must stick to methods and theories generally
accepted by other scientists.

The Federal Rules of Evidence were enacted by Congress in 1975 and broadened
the admissibility of scientific testimony to include theories that are not
widely embraced.

Evidence Standards Vary by State

State courts, which handle many liability suits like the Daubert case, have
their own rules about what evidence can be admitted. Some courts generally
follow a narrow standard like the Frye standard; others follow newer, more
liberal rules like the Federal ones enacted in 1975. Legal authorities hope
the Supreme Court will clear up the confusion and inconsistency. Strictly
speaking, the decision will apply only to Federal courts, but most state
courts look to the High Court for guidance.

Judges who adhere to the Frye standard often forbid unorthodox expert
testimony from ever reaching the jury, while judges who follow the more
accommodating Federal rules permit prosecution and defense lawyers to call
experts and have them present their usually contradictory scientific
theories. The jury is then expected to decide which expert is right.

Many believe the freer use of unorthodox scientific testimony has had a
disastrous impact on the country.

Vice President Dan Quayle and others have sought restrictions on product-
liability suits. Peter W. Huber, a senior fellow at the Manhattan Institute,
a public policy research group, and a former law clerk to Justice Sandra Day
O'Connor, suggests in his book, "Galileo's Revenge: Junk Science in the
Courtroom" (Basic Books, 1991), that in the wake of the 1975 ruling, courts
have been awash in crackpot testimony and unproved claims. This litigious
atmosphere has destroyed innovation and has cost the nation tens of millions
of dollars in legal fees and bloated product-liability insurance rates, Mr.
Huber says.

"There's been a let-it-all-in rubric," Mr. Huber said in an interview. "If
you have some basic credentials, that's enough. So if you have a degree in
immunology, that's sufficient qualification to allow you to testify on
something ludicrous and unproven like AIDS' being induced by chemicals."

Mr. Huber and others condemn expert testimony like that presented in a case
claiming an infant's birth defect was the result of spermicidal jelly used
in diaphragms, an assertion loudly disputed by nearly all scientists. They
say such testimony has brought research about birth control to a standstill
because no company wants to risk marketing new contraceptive devices for
fear of lawsuits accusing the product of causing congenital deformities.

They say unfounded scientific testimony led to recent settlements forcing
building owners to remove asbestos at great expense even when many
scientists suggest it is better to leave the material alone.

Mr. Huber believes it is time to return to a stricter rule, like the Frye
precedent.

"I don't think people should be allowed to testify about theories without
ever having published those theories in a peer-reviewed journal," he said.
"They should hew to their professional norms, and stick to testimony that
has been examined by others in the field."

When Testifying Can Be Lucrative

Critics of the relaxed standard of expert testimony said it encouraged the
rise of "guns for hire," expert witnesses who go from one case to the next
and say what the lawyers want.

"There are expert witnesses who make a very good income testifying," said
Bert Black of Weinberg & Green in Baltimore, who has filed a "friend of the
court" brief in the Daubert case and who often defends manufacturers against
product-liability claims. "There are probably a small number of names that
I've seen show up again and again, of experts who say what they have to to
win a case, and earn hundreds of thousands of dollars a year doing that."

Dan L. Burk, a molecular biologist and lawyer who teaches at Stanford
University Law School, characterized a number of expert witnesses as
scientific outcasts or hermits who have failed to be accepted by their
peers.

"The scientific community won't give them a hearing, so they take their
story to the court," he said. "They get a feeling of vindication if their
ideas are accepted by somebody, a trial judge or a jury."

Many legal experts said that in product-liability suits, juries, presented
on one hand with an expert witness representing a faceless corporation, and
on the other with a plaintiff suffering from an illness or deformity, were
likely to give undue weight to the testimony in favor of the little guy,
regardless of the scientific merits.

"If you allow too much junk science on behalf of plaintiffs, the juries
usually decide in favor of the plaintiff," said Paul F. Rothstein,
professor of law at Georgetown University and former chairman of the the
American Bar Association committee on criminal evidence. "They figure it's a
huge company with deep pockets, and somebody's hurt and needs help. But this
attitude might put a whole industry out of business or cause products to be
withdrawn that may be very useful to society."

But others insist that the narrowness of Frye gives judges excessive power,
and that keeping out maverick testimony prevents cutting-edge findings from
reaching the courtroom.

"Many scientists are completely taken aback by the concept that only peer-
reviewed stuff should be acceptable," said Kenneth J. Chesebro of
Cambridge, Mass, the plaintiff's lawyer in the Daubert case. "The idea that
an expert witness must publish or perish is really weird and naive, and it
perpetuates the myth that peer review is a blind conduit to the truth.

"This issue is really about control over science. It was clear that in 1975
Congress wanted to open the doors to potentially relevant testimony, and it
thought that 12 jurors were often able to piece together complex scientific
issues better than one lay judge."

Mr. Chesebro and others said it was wrong to apply the Frye rule, written to
help protect the rights of criminal defendants, to civil liability cases as
a way of shielding corporations against the consequences of shoddy designs
or careless handling of toxic waste.

"What is junk science, anyway?" said Devra Lee Davis, a scholar-in-residence
at the National Research Council who has often been criticized by her peers
for her insistence that cancer rates are rising worldwide, possibly as a
result of industrialization and pesticide use. "Junk science is any science
that industry doesn't condone."

Lawyers who support the unfettered admission of expert testimony said
juries, for all the accusations that they are scientifically illiterate and
likely to be overwhelmed by a scientist's authority, were in fact excellent
at sniffing out a fraud.

Some Say System Works Efficiently

"There is no system better designed to resolve conflicts in a free society
than the jury system," said Mitch F. Baumeister, who has argued many cases
involving asbestos disposal and other so-called toxic-tort suits. "There's
no better way of exposing weaknesses in your adversary's case than by the
use of competing witnesses. If you can't expose voodoo science, then you
don't deserve to win."

Mr. Baumeister said corporate fear of lawsuits kept Americans far safer than
they would otherwise be.

"There is no doubt that industries would dump chemicals into the ground, and
that we never would have heard about the dangers of cigarettes and asbestos,
or the exploding gas tank on the Ford Pinto, if it weren't for fear of
litigation," he said.

Some lawyers argue that the oft-repeated statement that American industry
has been hurt by litigation is not grounded in fact.

"There is no evidence linking excessive product-liability payments or
insurance rates with dampened competitiveness," said Marc Galanter,
professor of law at the University of Wisconsin in Madison and director of
the Institute for Legal Studies there. "It's often asserted, but it's never
been shown through any systematic study."

What is more, he said, widespread perceptions notwithstanding, the number of
product-liability lawsuits in most cases has been dropping, not soaring.

"If you put aside asbestos-related litigation, product-liability cases have
been shrinking," Professor Galanter said. "In 1985, 8,200 non-asbestos suits
had been filed, but in 1991, there were only 5,200. That's a big drop."

Copyright 1993 The New York Times Company
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Court Hears Case On Science Rules
By Linda Greenhouse,
Special to The New York Times
WASHINGTON, March 30, 1993

The Supreme Court wrestled today with the question of how judges should
decide when a scientific theory or process is sound enough to be admitted as
evidence. The hourlong argument itself served to demonstrate how baffled and
frustrated judges can feel when they find themselves at the intersection of
law and science.

"How are we supposed to know?" Chief Justice William H. Rehnquist exclaimed
at one point to the lawyer for a pharmaceutical company that was disputing
any link between Bendectin, a drug it once made, and birth defects in the
offspring of women who took the drug while pregnant.

"You're a lawyer, you're not a doctor," the Chief Justice continued,
addressing Charles Fried, a Harvard law professor and former Solicitor
General, representing Merrell Dow Pharmaceuticals Inc., now Marion Merrell
Dow of Kansas City, Mo. "Here you are telling me that certain things are so
in the scientific field. You may know, but I don't."

The case requires the Court to formulate a rule at a time when science is at
the forefront on questions like the validity of DNA fingerprinting and
medical malpractice.

Opposing Approaches

Courts have taken a variety of approaches over the years, all of which
appeared to be on the table today in Daubert v. Merrell Dow, No. 92-102. The
basic dichotomy is between approaches that make a judge the gatekeeper of
the validity of evidence a jury is permitted to hear, and those that rely on
the jury's ability to sift through the evidence and reach its own judgment.

In this case, the United States Court of Appeals for the Ninth Circuit, in
San Francisco, placed itself at the gatekeeper end of the spectrum in
dismissing a case against Merrell Dow brought on behalf of two children who
were born with shortened or missing limbs to women who took Bendectin to
ward off nausea during pregnancy.

The appellate court ruled that the trial court properly excluded scientific
testimony the plaintiffs had sought to present that attempted to link
Bendectin to the birth defects through chemical studies and animal
experiments rather than through epidemiological studies involving humans.
The appellate court said this approach did not meet the test of being
"generally accepted as a reliable technique among the scientific community."

That test, first expressed in 1923 in a Federal appellate decision, Frye v.
United States, is known as the Frye rule. The Ninth Circuit made the Frye
rule even stricter by suggesting in its Bendectin ruling that scientific
evidence should not be admissible unless it had been published in a journal
subject to the academic process of peer review.

New Rules of Evidence

The lawyer for the plaintiffs, Michael H. Gottesman, told the Court that
Congress had rejected the Frye rule in 1975 when it adopted new rules of
evidence for use in the Federal courts. The new rules permit relevant
testimony by "a witness qualified as an expert" in a scientific or technical
field, who "may testify thereto in the form of an opinion or otherwise."

By omitting any requirement that the expert's views had attained the level
of general acceptability, Mr. Gottesman said, "Congress relied on the
adversarial process to demonstrate that a marginal expert's conclusions are
marginal."

While some scientific propositions can be conclusively established, Mr.
Gottesman said, "we live in a world of uncertainty, and for many purposes we
can't wait" for absolute proof.

Several Justices, including Sandra Day O'Connor and Antonin Scalia, were
openly skeptical of Mr. Gottesman's approach. But Mr. Fried, representing
the manufacturer, did not find clear sailing either.

As he was describing the high level of acceptance that a court should
require before admitting scientific evidence, Chief Justice Rehnquist
interrupted to comment, "That's fine if you're going to get a Ph.D., but how
do the rules of evidence require it?"

Mr. Fried said the Court should adopt a standard that would assert "the duty
and the authority of Federal judges to assure that a jury verdict will be
rationally based."

The Justices appeared intrigued by the case but uncertain how to decide it.
"There are Harvard law professors on both sides of this case," Justice Harry
A. Blackmun, a Harvard graduate himself, said at one point to Mr. Fried. "I
had hoped you could get together and lead us out of the wilderness."

Copyright 1993 The New York Times Company

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